The House Energy and Commerce Committee on Tuesday marked up and passed H. R. 910, the Energy Tax Prevention Act, by a 34 to 19 vote.  All 31 Republicans on the committee supported Chairman Fred Upton’s (R-Mich.) bill.  They were joined by three Democrats—Representatives John Barrow (D-Ga.), Jim Matheson (D-Utah), and Mike Ross (D-Ark.).

The mark-up started on Monday afternoon with opening statements from members of the committee and then lasted most of Tuesday.  A number of amendments offered by Democrats were variations on the theme that the Congress accepts that global warming science is settled and that it’s a crisis.  All these amendments were defeated easily, but, as my CEI colleague Marlo Lewis points out, Republican supporters of the bill for the most part didn’t defend the bill very well against the Democrats’ attacks.

What the proponents should argue, but did not in committee mark-up, is that H. R. 910 is not about the science or what we should do about potential global warming.  The bill simply says that the EPA cannot use the Clean Air Act to regulate greenhouse gas emissions until the Congress authorizes it to do so.  Chairman Upton’s bill is designed to re-assert congressional authority to make laws (which the Constitution gives Congress the sole authority to do) and rein in an out-of-control executive branch.

Speaker John Boehner (R-Ohio) has said that passing the Upton bill is a priority.  It is now expected that the bill could be debated on the House floor as soon as the week of 27th March.  On 26th June 2009, the House Democratic leadership railroaded the mammoth Waxman-Markey cap-and-trade bill through the House in a single day of debate with only one Republican amendment allowed to be offered.  The Republican leadership under Boehner is doing things differently, so there will probably be several days of debate with numerous amendments considered.  The bill should pass easily, with almost unanimous Republican and significant Democratic support.

Yesterday morning, the Energy and Power Subcommittee of the House Energy and Commerce Committee met to mark up H.R. 910, the Energy Tax Prevention Act of 2011, but the results was a foregone conclusion. As they say in poker, Republicans had the “nuts.” The legislation, which would prohibit the Environmental Protection Agency from regulating greenhouse gases under the Clean Air Act, was co-written by Committee Chair Fred Upton (MI), and it enjoyed the support of all the Rs on the panel. Subcommittee Chair Ed Whitfield (KY) didn’t even bother with a roll call, and the Democrats on the panel didn’t object, so the bill passed by a voice vote alone.

Indeed, the only mystery to yesterday’s vote was whether any of the Subcommittee Democrats would side with the majority party. Already, senior House Democrats Colin Peterson (MN) and Nick Rahall (WV) have sponsored H.R. 910. The most likely Democratic defection, heading into yesterday’s markup, was Utah Rep. Tim Matheson, but he stayed in lock step with his party.

The fact that they had no hope of stopping the legislation didn’t stop Subcommittee Democrats from trying to gum up the proceedings. They adopted a neat division of labor.

• Rep. Henry Waxman (Beverly Hills): He argued that H.R. 910 would overturn the White House brokered “deal” with auto companies to raise fuel efficiency standards. This was an effort to frighten Committee Chair Fred Upton, who represents Michigan, and who is therefore very concerned with the auto industry. It was at Upton’s behest that the text of the legislation exempts this “deal.” The Committee General Counsel testified that Waxman’s interpretation is wrong.
• Rep. Gene Green (TX): Although he voiced support for stopping the EPA from regulating greenhouse gases under the Clean Air Act, Rep. Green claimed that H.R. 910 is bad legislation because it faced a certain veto in the White House.  [N.B. I’m not so sure this is true. Heading into the 2012 elections, the economy likely will be the paramount issue, and it might not make political sense for the President to proceed with expensive energy climate regulations]. He said he is working on a bill that would delay the EPA.
• Rep. Anna G. Eshoo (CA): Rep. Eshoo cited federalism as a reason to vote against the bill. She said H.R. 910 would strip California of its authority to set fuel efficiency standards. In fact, the Energy Policy and Conservation Act 1975 empowers only the Congress to set fuel efficiency standards.
• Rep. John Dingell (MI): Heading into yesterday’s mark up, I was most interested in what Dingell would do. He helped write the Clean Air Act, and he’s warned before that the Obama Administration is inviting a “glorious mess” by regulating greenhouse gases. Rep. Dingell took a facetious tone, and lightly admonished Committee Chair Upton for calling the bill the Energy “Tax” Prevention Act. Quite rightly, he said that the bill did not address a tax, and if it did, a different Committee (Ways and Means) would have had jurisdiction. He pleaded for “a little truth in labeling.”
• Eliot L. Engel (NY): Rep. Engel followed a clever line of reasoning that, quite frankly, I didn’t fully understand. He seemed to have made a very particular legal argument that H.R. 910 would conflict with prior federal efforts to fight climate change.

As for my take on the bill, I’ll quote my colleague Marlo Lewis, because I can’t say it any better:

“The debate on EPA’s greenhouse gas regulations boils down to a very simple issue. Who shall determine the content and direction of national policy—elected representatives accountable to the people at the ballot box, or non-elected bureaucrats, trial lawyers, and activist judges appointed for life? The Constitution permits only one answer to that question.”

From what I understand, the full Committee will take up H.R. 910 on Wednesday.

There wasn’t much to report from yesterday’s climate change science hearing before the Energy and Power Subcommittee of the House Energy and Commerce Committee. Generally speaking, Republican lawmakers used the entirety of their allotted time to question the scientists they had invited, and Democratic lawmakers did likewise. Click here for opening statements, and also for an archived podcast of the hearing.

Truth be told, the hearing’s pedigree is more interesting than the hearing was. Last week, the same subcommittee held a hearing on pending EPA regulations for greenhouse gases, in order to inform the debate on H.R. 910, the Energy Tax Prevention Act of 2011, legislation that would check the EPA’s authority to enact climate policy under the Clean Air Act. During these hearings, Rep. Henry Waxman (D-Beverly Hills), who is a master parliamentarian, leveraged an obscure procedural rule to demand a hearing of the minority party’s choosing. Subcommittee Chair Rep. Ed Whitfield, in an act of Congressional comity, granted the request. Ergo, yesterday’s “dueling science” hearing.

There was one notable element to yesterday’s action: The extent to which the center is moving away from the Democratic leadership on energy and environment policy. Rather feebly, Rep. Waxman concluded by asking that the majority party agree to postpone tomorrow’s scheduled mark up of H.R. 910…until Tuesday. It was a weak negotiating tactic.

Waxman’s weakness harkened to Rep. Gene Green’s reported pitch last week for a 5 year delay on greenhouse gas regulations under the Clean Air Act. That was significant because, until then, Congressional Democrats had been willing to countenance only a 2 year delay.

Of course, hardliners like Waxman were undercut by the bi-partisan appeal of H.R. 910. As I noted yesterday, opposition to expensive energy policies has been bipartisan in recent Congresses. This is especially true now, as gasoline surges past $3.50 and starts to dominate the politics of energy. Already, the legislation has won the support of senior House Democrats Rep. Colin Peterson and Rep. Nick Rahall.